Piner v. Clary

Judge Simpson delivered the opinion of the court: On the 14th of October, 1854, Clary transferred to Piner a certificate of deposit, which was made out in the following form, viz: “Peoples’ Bank, Cincinnati, Oct. 5th, 1851. “$100. No. 3577. “U. Clary has deposited in this bank, one hundred dollars, payable to the order of himself in currency, with interest at the rate of six per centum per annum on the return of this certificate. “P. B. Manchester.” The transfer was made by an indorsement as follows : “Pay A. J. Piner.” “U. Clary.” Piner and Clary both resided in Newport, at the time the transfer was made, at which place the former carried on the business of a broker. The transfer of the certificate of deposit was made on Saturday, and on the following Monday, being the 16th day of the month, payment thereof was demanded, at the counter of the People’s Bank, in Cincinnati, and a promise made to pay it in the course of the day. It was not paid however, although a — 661 — check which was drawn by Piner, for near two hundred dollars, as well as various other checks, drawn by other persons, were paid during the day. At. the time the amount of the transferred certificate was called for by Piner, he also called for four hundred dollars more to which he was entitled as a depositor. Manchester’s clerk proved that if he had only demanded the amount of the certificate of deposit', it would have been paid to him. ' The bank continued to do business on the following day, and then closed’ indefinitely. Manchester, who seems to have been the sole owner of the bank, immediately made an assignment of all his effects, and in a few days thereafter, left for parts unknown, and has not been since heard of. 1. The liability of an indorser of a mercantile paper is to be tested by the laws of the place where the indorsement is made. On the 21st day of the same month, the certificate of deposit was presented at the banking house of Manchester, which was then closed, and protested for non-payment. Notice of its dishonor was not given to Clary, until some days after the bank had failed. This action was brought by Piner to recover the amount of the certificate of deposit, from Clary, and the case having been submitted to the court, without a jury, a judgment was given for the defendant from which the plaintiff has appealed. The liability of Clary, depends essentially upon the character of the writing which he transferred to the plaintiff, and the nature and legal effect of his indorsement thereon. If as contended, it should be regai’ded as a mere promissory note, and assignable as such under our statute, and not as a mercantile instrument, then it follows, that the plaintiff was not bound, to have it protested for non-payment, nor to notify the assignor that it had not been paid, nor to do anything more, than to prosecute the maker thereof to insolvency with due diligence. The indorsement having been made in this state, the rights and liabilities of the — 662 — parties, under it, must be regulated by the law of the place where the indorsement was made. 2. A certificate of deposit is a mercantile paper, and passes by indorsement as such. (Miller, Sec. vs. Austin, &c., 13 Howard, 223.) Such instruments however are regarded as mercantile paper, and generally treated as such, and should not therefore be made to assume a character, which would place them upon a different footing, and change essentially the rights and liabilities of the parties. In the case of Miller, &c., vs. Austin, &c., 13 Howards R. S. C., 228, which was a suit on a certificate of deposit against the indorser the court said, “the established doctrine is that a promise to deliver, or to be accountable for so much money, is a good bill or note. Here the sum is certain, and the promise direct. Every reason exists why the indorser of this paper should be held responsible to his indorsee, that can prevail in cases where the paper indorsed is in the ordinary form of a promissory note, and as such note the state courts generally have treated certificates of deposit payable to order, and the principles adopted by the state courts in coming to this conclusion are fully sustained by the writers of treatises on bills and notes. Being of the opinion that the circuit court properly held the paper endorsed negotiable it is ordered that the judgment be affirmed ” It will be perceived that in this case the principle which the court intended to establish, was that an indorsed cei’tificate of deposit should be regarded as negotiable paper. In the state where the transaction occurred, promissory notes were negotiable, and therefore the certificate of deposit was assimilated to a note of that description. But as under the law of this state, a different effect altogether, would result from treating the writing as a mere promissory note, and as such, it would lose its negotiable character, it should not be regarded as a note, but as a mere evidence of a deposit, and the indorser should be considered as the drawer, of a check or bill for the amount named in the certificate. 3. A certificate of deposit, issued by a banker in Cincinnati, Ohio, and indors ed by the payee in Kentucky, assumes the character of a foreign bill of exchange; and that it was payable in currency does not destroy its character as a bill of exchange. (Rev. Stat., page 94.) 4. Bills and checks when payable on presentation or demand, must be presented in a reasonable time after they are received. 5. A bill or cheek, received on Newport, and payable in Cincinnati, these separated by the Ochlo river only should be presented by a notary if not paid on that day, as are days of grace are allowed on such paper, and notice given to the indorser, according to the law of the place indorsement was made (Chitty on Bills, 506.) — 663 — The act of indorsing a bill is equivalent to that of a new drawing, and it has this effect on the person making it, whether the bill be originally negotiable or not. (Story on Bills, 131; Chittyon Bills, 267.) And as the certificate of deposit was payable in another state, the instrument, as to its negotiability and the rights and duties of the parties, was placed on the footing of a foreign bill of exchange. The fact that it was payable in currency does not deprive it of this character, inasmuch as it is expressly provided by the Revised. Statutes, page 194, that “bills, drafts or checks, payable in bank notes or currency, or other funds wheresoever drawn or payable, shall be deemed negotiable, and treated, in all respects, as if drawn for money, except as to the value of the currency in which they are payable.” Regarding it then as placed on the footing of a foreign bill, it is evident, that the holder by his laches has discharged the endorser from all liability on the instrument. Bills and checks when payable on presentment, or demand, as the writing in this case was, must be presented within a reasonable time after they have been received. As Newport aud Cincinnati, although in different states, are in close juxtaposition, and only separated by the Ohio river, payment of the certificate of deposit should have been demanded on the first day of business next following the day it was received by the holder, having on that day been transferred to him, after banking hours. It was presented for payment in due time, but it was not protested on that day for non-payment as it should have been. It was payable immediately on presentment, without any days of grace, for it is well settled, that when a check or even a bill, is made payable on presentment or demand, or where no time of payment is expressed, it is payable instantly on presentment, without any allowance of days of grace. (Chitty on Bills, 410.) A protest for non-payment was indispensably necessary and should have been made on the 16th, when — 664 — the certificate was presented for payment. (Chitty on Bills, 489.) And the presentation for payment should have been made by a notary public, and if the payment had been refused, a protest should have been regularly made in due form, and was absolutely necessary to enable the holder to recover against the drawer or indorser. (Chenowith & Co., vs. Chamberlain, 6 B. Mon., 61.) As the parties resided in the same place, notice of the non-payment should have . . ,. f J been given on the succeeding day. (Combs vs. Duckham, &c., Lit., 194.) The time of making protest is to be regulated by the law of the place where it . . , , ,, „ . . ,. , ,, is made; but the time of giving notice of the non-Payment t° he regulated by the law of the place where the drawer and indorsers respectively resided at the time when the bill was drawn or endorsed. (Chitty on Bills, 506.) There being no proof, as to the law of Ohio, with respect to the time when the protest should have been made, we have regarded the general law merchant as applicable to the case; but as the time of giving notice of the non-payment is regulated by our own law, and as that was not complied with, the indorser is on that ground alone discharged from all liability on the instrument. An attempt has been made to excuse the failure to give notice, on the ground that the defendant left home on the day succeeding that, on which the certificate of deposit was presented for payment. But that excuse is insufficient, because, if notice had been regularly given, he might have received it before he left home, or some person may have been authorized to attend to his business in his absence, and would have done so, had notice been given at his dwelling, or his usual place of business. If the plaintiff when he presented the certificate of deposit, had insisted on its payment, and informed Manchester, that unless it was paid, he would have it presented by a notary public and protested, it is clear, according to the proof, that payment of it — 665 — would have been made. Instead however of adopting this course, he seems to have relied upon the promise that it should be paid, and did not even make any effort on the succeeding day to collect it, although the bank was then open, and still doing business. Under these circumstances it is just and right that he should bear the loss which has resulted from his own negligence. Wherefore, the judgment is affirmed.